[1] The concept and scope of ordinary wages

[2] Whether wages for paid holidays received by a monthly wage rate member are included in the monthly wage system (affirmative)

[3] In a case where a Si rate employee receives fixed allowances in the form of a monthly salary, whether the part of the fixed allowances with the nature of a wage for paid holidays is included in the fixed allowances (affirmative)

[4] In a case where only those who worked on Saturdays under the weekly working hours system are compensated for wages of 4-4 hours per hour per week, whether such wages constitute ordinary wages (negative)

[5] Method of calculating hourly ordinary wages under the working conditions of six days per week, forty-four hours per week

[1] If money and valuables are paid to an employee as the object of the prescribed work or the total amount of work, and if that money and valuables are paid periodically and uniformly, in principle, the wages, in principle, belong to ordinary wages under the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997). However, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wages, a certain amount of wages, in order to constitute ordinary wages, shall belong to a fixed wage regularly and uniformly paid, and thus, it does not constitute ordinary wages, since it does not constitute a fixed wage.

[2] When a worker’s wage is paid at a monthly salary, the monthly wage includes the wage for paid holidays as stipulated in Article 45 of the former Labor Standards Act. The wage for paid holidays is paid only to the workers who opened the prescribed working days, and it does not constitute ordinary wage regularly and uniformly, and it does not constitute a fixed wage, and thus, in calculating ordinary wage, the wage for paid holidays should be deducted from the monthly wage calculated by aggregating the basic monthly wage and fixed allowances paid every month.

[3] In a case where a Si rate employee receives a monthly fixed allowance, along with the basic rate of pay, in the form of a monthly salary, it is reasonable to deem that the said fixed allowance includes the part having the nature of wage for paid holidays under Article 45 of the former Labor Standards Act. Therefore, in calculating the ordinary wage, the part of wage for paid holidays among the fixed allowances paid every month shall be deducted.

[4] When the Labor Standards Act was revised on March 29, 1989 and the weekly working hours have been reduced from 48 hours to 44 hours a week pursuant to Article 42(1) of the same Act, if the company and the trade union concluded a collective agreement and agreed to work six days a week in order to compensate for the decrease in wages, and if the company and the trade union worked for 44 hours a week and 4 hours a week working for 4 hours a week, the wages of 4 hours a week in the Saturday vary depending on whether the worker works for 4 hours a week, and thus, it cannot be deemed that the payment of wages for 4 hours a week differs depending on whether the worker works for 4 hours a Saturday, and thus, it cannot be deemed as ordinary wages. Accordingly, it is reasonable to view that the monthly fixed allowances paid to the worker in the City are also included in the part of wages for 4 hours a week, and therefore, the part of the daily fixed allowances paid for 4 hours a month should be deducted from ordinary wages.

[5] 단체협약상 1주일에 6일을 근무하되 주당 근로시간이 44시간으로 되어 있는 경우, '1일 소정근로시간'은 44/6시간이라고 할 것이고, '월의 소정근로일수'는 1달의 평균일수에서 그 달의 평균휴일수를 뺀 일수 즉 '365/12－365/(12×7)＝365/12×6/7'일이 되고, 따라서 '월의 소정근로시간'은 '44/6×365/12×6/7≒191.19'시간이 된다고 할 것이므로, 근로기준법시행령 제31조 제2항에 의하여 월급금액으로 정하여진 통상임금을 시간급 금액으로 산정할 때에는 그 금액을 월의 소정근로시간수로 나눈 금액에 의하여야 할 것인바, 이처럼 '월의 소정근로시간수'로 나누는 방식에 의하여 시간급 통상임금을 산정하기 위해서는 먼저 월급금액으로 정하여진 통상임금을 확정하여야 하고, 월급제 사원이 지급받는 월급과 시급제 사원이 매월 지급받는 고정수당에 통상임금으로 볼 수 없는 구 근로기준법 제45조 소정의 유급휴일에 대한 임금의 성격을 갖는 부분과 토요일 오후 4시간분에 대한 임금으로서의 성격을 갖는 부분이 포함되어 있어 그 통상임금을 확정하기가 곤란한 경우에는 근로자들이 유급휴일과 토요일 오후 4시간을 근무한 것으로 의제하여 그 총근로시간수를 산정한 후, 유급휴일에 대한 임금의 성격을 갖는 부분과 토요일 오후 4시간분의 임금의 성격을 갖는 부분이 포함된 월급 또는 고정수당을 그 총근로시간수{＝(44＋8＋4)/7×365/12≒243.33(시간)}로 나누는 방식에 의하여 각 그 시간급 통상임금을 산정하여도 무방하다.

[1] Article 31 (see current Article 6) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) / [2] Article 45 (see current Article 54) of the former Labor Standards Act (amended by Presidential Decree No. 5309 of March 13, 1997), Article 31 (see current Article 6) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) / [3] Article 45 (see current Article 54) of the former Labor Standards Act (amended by Presidential Decree No. 15309 of March 13, 1997), Article 31 (see current Article 36 (1) of the Enforcement Decree of the Labor Standards Act) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) / [36 (see current Article 1365) of the former Enforcement Decree of the Labor Standards Act

[1] [4] [5] Supreme Court Decision 96Da4426 delivered on April 24, 1998 (1] Supreme Court Decision 94Da19501 delivered on February 9, 1996 (Gong1996Sang, 857), Supreme Court Decision 95Da227 delivered on May 10, 1996 (Gong1996Ha, 1794), Supreme Court Decision 95Da36817 delivered on May 28, 1996 (Gong196Ha, 1979), Supreme Court Decision 95Da24074 delivered on June 28, 1996 (Gong196Ha, 1979) / [2] Supreme Court Decision 95Da19694 delivered on June 29, 196 (Gong196Ha, 23299) / [309Da198499 delivered on June 29, 1996

Plaintiff 1 and two others (Law Firm Busan General Law Office, Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Hyundai Government Co., Ltd. (Law Firm Sam, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 96Na5230 delivered on May 30, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Of the grounds of appeal No. 1, as to the violation of the rules of evidence, the grounds for appeal and the inconsistent reasoning

According to the reasoning of the lower judgment, the lower court determined that: (a) Plaintiff 1 and Plaintiff 2 were the Si rate employee of the Defendant company; (b) Plaintiff 3 as the Si rate employee; (c) was paid monthly fixed allowances with basic pay; (d) was paid with family allowances, welfare allowances, production encouragement allowances, and continuous service allowances; and (e) Plaintiff 2, who is the same Si rate employee, was paid with other qualification allowances; (c) was paid with welfare allowances and continuous service allowances along with the monthly basic pay; (d) Defendant 3, who is the monthly basic pay; and (e) was paid with the weekly fixed work hours from the previous company, to the Si rate employee; (e) was paid with the weekly fixed work hours; (e) the Defendant company’s calculation method of weekly paid holiday allowances to the employees at the time of changing the hourly regular wage rate to the extent that it did not bring about the overall increase in the hourly regular wage rate to the employees at the time of changing the regular wage rate to the normal wage rate.

In light of the records, we affirm the fact-finding and judgment of the court below, and there is no violation of the rules of evidence, the lack of reason, or the violation of the law of inconsistency with the reasoning. The ground of appeal on this part is without merit.

2. As to the ground of appeal No. 1 and ground of appeal No. 2

A. If money and valuables paid to an employee as the object of the prescribed work or the total amount of work is paid periodically and uniformly, in principle, wages belonging to ordinary wages under the former Labor Standards Act (amended by Act No. 5305, Mar. 13, 1997; hereinafter “Labor Standards Act”). However, in light of the legislative intent, function, and necessity of the Labor Standards Act, if a certain amount of wages falls under ordinary wages, they must belong to the fixed amount of wages paid periodically and uniformly, and thus, it does not constitute ordinary wages (see, e.g., Supreme Court Decisions 94Da19501, Feb. 9, 1996; 95Da227, May 10, 1996; 95Da24074, Jun. 28, 1996).

According to the facts duly established by the court below, the plaintiff 3, an employee of the monthly salary, received welfare allowances and continuous service allowances as a fixed allowance along with the monthly basic salary. When the worker's wages are paid at a monthly salary, the monthly salary includes the wages for paid holidays as prescribed in Article 45 of the Labor Standards Act (see, e.g., Supreme Court Decisions 90Meu12493, Dec. 26, 1990; 90Meu14758, Jun. 28, 1991). Such paid holiday wages are paid only to the workers with perfect attendance of the prescribed working days, and do not constitute ordinary wages, and do not constitute a fixed wage regularly and uniformly. Thus, in calculating the ordinary wages of the plaintiff 3, the wage for paid holidays should be deducted from the monthly basic salary and fixed allowances paid every month.

In addition, according to the facts duly established by the court below, the plaintiff 1 and the plaintiff 2, who is a part-based employee, received a fixed allowance on a monthly basis along with the basic rate. As long as the above plaintiffs received such fixed allowance in the form of a monthly salary, it is reasonable to view that the part of the fixed allowance includes the nature of wage for paid holidays as stipulated in Article 45 of the Labor Standards Act (in the case where the above plaintiffs paid a weekly contractual work hours, it is not different from that of receiving a weekly paid holiday allowance calculated according to the method as stated in its reasoning). Thus, in calculating the ordinary wage of the above plaintiffs, the part of wage for such paid holiday among the fixed allowances that the above plaintiffs received shall be deducted.

Furthermore, according to the reasoning of the judgment below and the records, upon the amendment of the Labor Standards Act on March 29, 1989, the work hours per week were reduced from 48 hours per week to 44 hours per week pursuant to Article 42 (1) of the same Act, and the defendant company and its labor union entered into a collective agreement on June 30, 1990, and agreed on June 30, 199 that the work hours per week shall be 6 hours per week, and 4 hours per week shall be paid 4 hours per week if the work hours per week are 4 hours per week, and that the defendant company agreed on the payment of 4 hours per week hours per week to reduce the amount of wages paid per week if the work hours per week reduces the amount of wages received by the employees corresponding thereto, but at that time, the defendant company and its labor union at that time take such measures to compensate for the amount of wages reduced at a level of consideration for workers, and therefore, it cannot be viewed that the above measures do not change the amount of wages per week to 4 hours per week.

However, since the monthly wage paid by the plaintiffs 3 includes the wages of 4-hour hours per Saturday that cannot be seen as ordinary wage, it shall be deducted in calculating that ordinary wage. It is reasonable to view that the part of the monthly fixed allowance paid by the plaintiffs 1 and 2, who are part of the ordinary wage, also includes the part of the wage for 4-hour hours per Saturday that cannot be seen as ordinary wage (it does not mean that the above plaintiffs are paid an amount equivalent to the 4-hour wage per hour per Saturday.). Thus, in calculating the ordinary wage of the above plaintiffs, the part of the wage for 4-hour hours per Saturday, among the fixed allowances paid by the above plaintiffs 3, should be deducted again.

나. 한편 근로기준법시행령 제31조 제3항에 의하면, '월의 소정근로시간'이라 함은 월의 소정근로일수에 1일의 소정근로시간을 곱한 시간을 말하고, '1일 소정근로시간'이라 함은 근로기준법 제42조 제1항 본문, 산업안전보건법 제46조 또는 근로기준법 제55조 본문의 규정에 의한 근로시간의 범위 안에서 근로자와 사용자 간에 정한 시간을 말한다라고 규정하고 있으므로, 단체협약상 1주일에 6일을 근무하되 주당 근로시간이 44시간으로 되어 있는 원고들의 경우 '1일 소정근로시간'은 44/6시간이라고 할 것이고, '월의 소정근로일수'는 1달의 평균일수에서 그 달의 평균휴일수를 뺀 일수 즉 '365/12－365/(12×7)＝365/12×6/7'일이 되고, 따라서 '월의 소정근로시간'은 '44/6×365/12×6/7≒191.19'시간이 된다 고 할 것이다.

그러므로 근로기준법시행령 제31조 제2항에 의하여 월급금액으로 정하여진 통상임금을 시간급 금액으로 산정할 때에는 그 금액을 위와 같은 월의 소정근로시간수로 나눈 금액에 의하여야 할 것인바, 이처럼 '월의 소정근로시간수'로 나누는 방식에 의하여 시간급 통상임금을 산정하기 위하여는 먼저 월급금액으로 정하여진 통상임금을 확정하여야 할 것인데, 원고 3이 지급받는 월급과 원고 1, 원고 2가 매월 지급받는 고정수당에는 통상임금으로 볼 수 없는 근로기준법 제45조 소정의 유급휴일에 대한 임금의 성격을 갖는 부분과 토요일 오후 4시간분에 대한 임금으로서의 성격을 갖는 부분이 포함되어 있어 그 통상임금을 확정하기가 곤란하므로, 이러한 경우에는 원고들이 유급휴일과 토요일 오후 4시간을 근무한 것으로 의제하여 그 총근로시간수를 산정한 후, 유급휴일에 대한 임금의 성격을 갖는 부분과 토요일 오후 4시간분의 임금의 성격을 갖는 부분이 포함된 월급 또는 고정수당을 그 총근로시간수{＝(44＋8＋4)/7×365/12≒243.33(시간)}로 나누는 방식에 의하여 각 그 시간급 통상임금을 산정하여도 무방하다 고 할 것이다.

C. According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim of this case on the ground that the defendant company's calculation of the plaintiffs' hourly ordinary wages is 240 hours which would result in favorable results for the plaintiffs, and the judgment below is just, and there is no error in the misapprehension of legal principles as to ordinary wages, or in the misapprehension of legal principles as to the principle of good faith or the principle of fairness, or in the misapprehension of legal principles as to the principle of fairness, as otherwise alleged in the grounds of appeal as to this point, there are no errors in the misapprehension of legal principles as to ordinary wages, or in the misapprehension of legal principles as to the principle of fairness.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)